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Kaplun v. Attorney General of the United States

April 9, 2010


On Petition for Review of a Final Order of the Board of Immigration Appeals. Immigration Judge: Honorable Charles M. Honeyman. (No. A22-214-070).

The opinion of the court was delivered by: Ambro, Circuit Judge


Argued March 8, 2010

Before: AMBRO, SMITH, and MICHEL,*fn1 Circuit Judges


Petitioner Vadim Kaplun, a citizen of the Ukraine, petitions for review of four decisions of the Board of Immigration Appeals resulting in a final order of removal that designated him removable for having committed an aggravated felony, denied him withholding of removal by virtue of having committed a particularly serious crime, and reviewed de novo and reversed the Immigration Judge's finding of a clear probability of future torture if Kaplun were removed. He contends that the Government did not prove he committed an aggravated felony by clear and convincing evidence; as a non-violent, white collar offense, his offense was not a particularly serious crime; and the BIA applied an improper de novo standard of review to the IJ's finding that Kaplun's torture if removed would be probable. We conclude that the BIA was correct on the first two issues, but applied an incorrect standard of review on the third. Accordingly, we deny the petition for review on the first two claims, and grant it on the third claim.

I. Facts and Procedural History

A. Kaplun's Background

Kaplun is a native of the Ukraine who was admitted to the United States in 1977 as a seven-year-old refugee. He later became a legal permanent resident. In 1997 and 1998 he was charged and convicted in two federal criminal proceedings based on his participation in fraudulent stock schemes.

For reasons we describe below, only the 1998 conviction is at issue here. Kaplun there pled guilty to an information*fn2 alleging securities fraud with losses of nearly $900,000 under 15 U.S.C. §§ 77q, 77x, and 18 U.S.C. § 2. Per the pre-sentence investigation report (PSR), the total loss for the 1998 offense was described as "at least $700,000 and less than $1,000,000." The $700,000 figure was used twice more in the PSR to calculate the specific offense level*fn3 and to calculate the maximum fine. Defense counsel made no objection to the PSR. After the District Court adopted the PSR (save for two exceptions not relevant here) and granted a downward departure, the undisputed Guideline range was 51--63 months' imprisonment. Kaplun was sentenced to 56 months' imprisonment for the 1998 conviction, but a fine was waived because of his inability to pay.

B. Removal Proceedings Before the Immigration Judge

The Government began removal proceedings against Kaplun in 2001 based on the 1997 and 1998 convictions. He denied removability and later submitted an application for asylum. The Government produced the judgment of conviction, the PSR, and the information to establish the 1998 conviction and its surrounding facts. No plea colloquy was produced, though Kaplun does not deny that he pled guilty to the single-count information.

In his application for asylum, Kaplun claimed that, as a Jewish refugee, he would be subjected to persecution and torture if he were removed to the Ukraine. In support of his claims, he procured an expert witness to give testimony on anti-Semitism in the Ukraine. This expert gave detailed testimony on the situation and voiced disagreement with various Government reports on the extent of anti-Semitism in that country. He also testified that Kaplun would be unable to gain citizenship, get a job, rent an apartment, or even buy a train ticket. It was his expert opinion that Kaplun would be living on the street, destitute, and would be targeted for extortion and torture.

In an April 2004 ruling, the IJ found Kaplun removable based on his prior convictions (though it was unclear which of the two convictions qualified), but granted withholding of removal and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"),*fn4 crediting the testimony of Kaplun's expert. Despite this, Kaplun appealed the part of the ruling that found him removable. The Government cross-appealed the part of the ruling granting withholding of removal.

C. The BIA's First Ruling

The first ruling by the Board of Immigration Appeals was issued in November 2004. It held that the IJ erred in his removal findings by inadvertently relying on the wrong record of conviction, and it vacated the IJ decision and remanded for a determination of whether Kaplun was indeed removable as charged under either the 1997 or the 1998 conviction.

D. The Immigration Judge Responds

The IJ issued a second ruling in February 2006, in which he went through the removability charges in great detail. He concluded that the sole sustainable removal charge was the 1998 fraud conviction. The basis for this decision was Kaplun's conviction for an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i) ("an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000"). The IJ then certified the case and sent the matter back to the BIA for resolution of the remaining issues on appeal-namely, removability and the prior grant of relief from removal under the CAT.

E. The BIA's Second Ruling

The BIA issued a second decision in August 2006. It addressed the following: (1) whether the removability charge was sustainable based on the 1998 conviction; (2) whether that 1998 conviction was a particularly serious crime rendering Kaplun statutorily ineligible for withholding of removal, or in the alternative whether Kaplun met his burden of proof of establishing eligibility for withholding of removal; and (3) whether the IJ erred in finding that Kaplun had met his burden of proving probability of torture under the CAT. The BIA concluded that Kaplun was removable on the basis of the 1998 conviction, that it was a "particularly serious crime" (thereby declining to address the alternative argument), and that the IJ erred in granting relief under the CAT. It thus ordered Kaplun removed to the Ukraine.

He filed a petition for review of the final order of removal in August 2006. We did not rule on the petition at that time.

F. The BIA Issues A Third Ruling Denying A Motion to Reopen

In November 2006, Kaplun filed a motion with the BIA to reopen his case based on our decision in Alaka v. Attorney General, 456 F.3d 88, 108 (3d Cir. 2006) (in determining a loss amount for 8 U.S.C. § 1101(a)(43)(M)(i), "we look only to the charges to which the petitioner pled guilty, and not to conduct that was neither admitted nor proven beyond a reasonable doubt"). In February 2007, the BIA denied the motion to reopen because it concluded that Alaka was factually distinguishable.

Kaplun then filed a petition for review with our Court in February 2007. On motion of the Government, we remanded Kaplun's 2007 petition, along with his 2006 petition, to the BIA in September 2007. We asked for a determination of whether the BIA had authority to reverse the immigration judge's determination that "there [was] a preponderance of evidence in the record leading to a justification for a clear probability finding that this particular respondent . . . is likely to be targeted [for mistreatment,] at least in part, by both governmental and nongovernmental entities within the Ukraine should he be removed to that country . . . [and that such mistreatment will rise to the level of torture.]"

G. The BIA's Fourth Ruling

In May 2008, the BIA issued a precedential decision answering the question on remand. Matter of V--K--, 24 I & N Dec. 500 (BIA 2008). It held that it had the authority to review the IJ's ...

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